Here’s what likely happens in the US in a foreclosure case
http://www.michaelmoore.com/words/mike-in-the-news/why-bank-bashing-populist-democrat-opposed-wall-street-reform-bill
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Legal Disclaimer: SelfRepresentedFool IS NOT a licensed attorney and DOES NOT provide or intend to provide a legal advice. The information below is “information” provided under the Freedom of Information Act and the Free Speech Amendment.
Here’s what likely happens in the US in a foreclosure case:
1) The BANK files a complaint against a common person who has not paid his/her mortgage for 2-3 months;
2) That common person MUST file a response, but often DOES NOT;
3) The case is set for a Case Management Conference, and the JUDGE issues an order that if the common person DOES NOT respond, then the case will go by DEFAULT.
4) If the case goes by DEFAULT (many cases do), then the JUDGE issues AN ORDER directing the home-owner to vacate his/her home.
If the case DOES NOT go by default, but the home-owner is SELF-REPRESENTED (most cases), then the JUDGE RULES IN FAVOR OF THE BANK and orders the home-owner to vacate his home. The JUDGE also RULES that the BANK IS THE NEW OWNER of that home.
5) If the home-owner REFUSES to vacate his/her home (which is technically HIS/HER until all the deadlines for appeal of the judge’s order have passed), the BANK waits until the end of appeal deadlines and then files a motion in the court to ENFORCE THE ORDER TO VACATE. The JUDGE issues an ENFORCEMENT ORDER. This becomes an INVOLUNTARY EVICTION, and the home-owner is given a NOTICE OF EVICTION.
6) Police acts as enforcement hand of the JUDGE’S EVICTION ORDER, NOT as a BANK’S AGENT.
7) The home-owner who refused to obey that JUDGE’S ORDER to vacate can be punished for civil contempt of court and for a misdemeanor such as disorderly conduct and for a crime such as obstruction of justice.
The key to STOP FORECLOSURE process is TO FILE A RESPONSE stating that the BANKS DOES NOT HAVE A CAUSE OF ACTION because:
a) the bank DID NOT PROVE THE OWNERSHIP OF THE MORTGAGE LOAN; and
b) the bank suffered NO DAMAGES as a result of non-payment of a mortgage loan because the BANK WAS “MADE WHOLE” via the mortgage securitization process. [1], [5]-[11].
Also, a home-owner SHOULD FILE A DEMAND TO THE BANK for production of documents, specifically to PRODUCE THE ORIGINAL MORTGAGE as a proof of ownership of the mortgage loan. [2], [3], [4]
If the foreclosing BANK IS AN ASSIGNEE OF THE ORIGINAL MORTGAGE LOAN, then the assignee DOES NOT HAVE A LEGAL RIGHT TO SUE the home-owner. ONLY the ORIGINAL BANK that issued a mortgage loan has a legal right to sue the home-owner for breach of contract. [3]
In the same way, any DEBT COLLECTOR HAS NO LEGAL RIGHT TO SUE the debtor [8].
See also my comments and case law and references in the comments below.
References:
[1] How mortgage securitization worked and why lending banks are indifferent to whether mortgages are paid or not by borrowers:
http://www.guardian.co.uk/business/2008/oct/20/creditcrunch-marketturmoil-globaleconomy
[2] Guide to Foreclosure Fraud:
http://www.scribd.com/doc/20916919/Foreclosure-Fraud-Guide-to-Looking-up-Public-Records-for-Fraud
[3] US Bank v. Ibanez- Foreclosure judgment vacated, motion to vacate judgment denied:
http://www.scribd.com/doc/21062165/US-Bank-v-Ibanez-Memo-of-Decision-Denying-US-Bank
[4] Very good video- How to fight foreclosure through DISCOVERY REQUEST TO PRODUCE THE NOTE (templates of Discovery Requests on the web site:
http://www.consumerwarningnetwork.com/2010/03/30/fight-foreclosure-make-em-produce-the-note-6/:
http://www.youtube.com/watch?v=LqAWCgKuvZ0&feature=related
[5] Mortgage Servicers’ Secret- bankers make MORE MONEY on homes in DEFAULT, banks have QUOTAS to make to FORECLOSE:
http://www.youtube.com/watch?v=vxyRFSYe7ws&feature=related
[6] “Learning How to Fight the Collector”, published on 4/23/10 in NY Times:
http://www.nytimes.com/2010/04/24/business/24collection.html
[7] Goldman and New Century Financial Corp. subprime mortgage relation:
http://www.michaelmoore.com/words/latest-news/why-did-blue-chip-goldman-take-walk-subprimes-wild-side
[8] 10/19/09 Take America Back from the Banks (prevent foreclosure guide in comments):
http://www.michaelmoore.com/words/mike-friends-blog/mike-friends-blog-take-america-back-banks
[9] Goldman Sachs scheme in mortgage-backed debt securities:
http://www.michaelmoore.com/words/latest-news/how-goldman-secretly-bet-us-housing-crash
[10] WaMu’s killing mortgage strategies:
http://www.michaelmoore.com/words/latest-news/reckless-strategies-doomed-wamu
[11] Foreclosure fraud blogspot:
http://homeequitytheft-cases-articles.blogspot.com/2009_04_01_archive.html
[12] “Lawyer misconduct rises with foreclosures record”:
http://news.yahoo.com/s/ap/20100213/ap_on_bi_ge/us_lawyer_scams
[13] 7-year statute of limitations on debt collection:
http://www.americanconsumernews.com/2007/10/how-to-fight-back-against-debt-collectors-who-try-to-collect-expired-debts.html
[14] Understanding Collection Agencies:
http://www.debtorboards.com/index.php/topic,20.0.html
[15] California Credit Law Blog- Statutes of Limitations (4 y. for CC, 7.5 y. for Credit Report):
http://www.californiacreditlaw.com/2007/06/old_consumer_debt_when_is_it_t.html
[16] Statute of Limitations, New Hampshire law, and credit card debt:
http://www.californiacreditlaw.com/2009/04/statute_of_limitations_defense.html
[17] Lisa E comment- good links:
http://www.michaelmoore.com/words/latest-news/foreclosures-continued-rise-3rd-quarter-banks-worked-backlog
Wanna find the fraud in your own foreclosure case? Here’s a lovely tutorial:http://www.scribd.com/doc/20916919/Foreclosure-Fraud-Guide-to-Looking-up-Public-Records-for-Fraud
Need more info on defending against a foreclosure? www.livinglies.wordpress.com
Don’t believe me? Seems some educated smart people agree with me!
KATHERINE PORTER, University of Iowa Professor of Law “Mistake and Misbehavior in Bankruptcy Mortgage Claims” http://www.texaslrev.com/sites/default/files/issues/vol87/pdf/porter.pdf
COMMENTS LAUDING PORTER’S WORK:http://www.texaslrev.com/sites/default/files/seealso/vol87/pdf/87TexasLRevSeeAlso9.pdf
Lisa E.
www.ForeclosureHamlet.ning.com
[18] Acehole123 comment- UCC section 3-501: posted 5/10/10 at:
http://www.michaelmoore.com/words/latest-news/stony-ridge-man-arrested-after-being-carried-foreclosed-home
“Uniform Commercial Code 3-501 requires a lender to “Exhibit the NOTE” when the lender makes demand for payment, and the borrower demands to see the NOTE. Technically a demand for payment occurs every month, and it also occurs when a bank begins foreclosure proceedings. This code also requires a “Servicer” to show authority to make a demand for payment, if it does not own the NOTE, but, is merely servicing it.
In the event a Noteholder or Servicer will not Exhibit the Note or perform other legal requirements when requested to do so by the borrower, this UCC section allows the borrower to discontinue payments WITHOUT DISHONOR until such time as the Noteholder or Servicer complies with all laws or contract provisions.
Now, it appears that in the FRAUDULENT SECURITIZATION of mortgages, (No doc, Low doc or Full doc), the Note and the Mortgage were separated and the note was misplaced, shredded, destroyed…
So now, maybe, we can understand why THEY can’t “PROVE IT UP”.”
[19] findlaw.com on UCC:
http://codes.lp.findlaw.com/LCsearch.html?entry=UCC&restrict=codes:uscode
[20] Uniform Commercial Code, Article 3- Negotiable Instruments:
http://www.law.cornell.edu/ucc/3/overview.html
[21] U.C.C. – Article 3- Negotiable Instruments….Part 5. Dishonor
§ 3-501. Presentment.
http://www.law.cornell.edu/ucc/3/3-501.html
[22] Example of letter “Refusal for Cause Without Dishonor” pursuant to UCC 3-501:
http://www.buildfreedom.com/tl/tl16i.shtml
[23] How to do a Proper Refusal for Cause:
http://webcache.googleusercontent.com/search?q=cache:g4IbsdVBZNkJ:www.freewebs.com/iamsiren/Citizenship%2520Banking%2520%26%2520UCC/How%2520to%2520do%2520a%2520Proper%2520Refusal%2520for%2520Cause.doc+u.c.c.+3-501&cd=4&hl=en&ct=clnk&gl=us
[24] Links on UCC and case law:
http://www.citizensoftheamericanconstitution.org/Metris%20Case/reference_material_1.htm
[25] Transferable Records:
http://codes.lp.findlaw.com/uscode/15/96/II/7021
[26] Electronic contracts and signatures:
http://codes.lp.findlaw.com/uscode/15/96/notes
[27] NEW 6/17/10: Mortgage Fraud crackdown- 484 arrested, 1,215 charged with fraud, losses of $2.3B to HOMEOWNERS:
http://news.yahoo.com/s/nm/20100617/us_nm/us_mortgage_fraud Reply
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